AFCCA issued a pair of interesting decisions today in Sweeney remand cases.  In United States v. Burton, No. ACM S31632 (f rev) (A.F. Ct. Crim. App. July 17, 2012), AFCCA held that the Confrontation Clause errors in the admission of certain drug testing documents was harmless because the defense focused on lack of evidence of knowing drug use rather than on any deficiency in the testing process or results. 

But, AFCCA warned, “In many urinalysis cases the defense chooses to attack laboratory personnel and procedures, and in those cases testimonial hearsay which blunts those attacks is clearly prejudicial.”  Id., slip op. at 4.  AFCCA proved that point in another opinion it issued today setting aside a wrongful use of cocaine conviction. United States v. Weeks, No. ACM S31625 (f rev) (A.F. Ct. Crim. App. July 17, 2012).  In Weeks, the prosecution’s forensic toxicology expert didn’t work in the lab that tested the accused’s sample and admitted that he hadn’t even visited that lab in five years.  Id., slip op. at 3.

Both of these bookend opinions were written by Senior Judge Gregory for a unanimous panel.

One Response to “Sweeney remand bookends”

  1. ry says:

    “for a unanimous panel” – I had a vision of Jack Nicholson saying, “Is there any other kind?”

    Not to be too sarcastic but AFCCA went about 1 year between opinions with a dissent (if memory serves right it was US v. Rose and then not again until US v. Brissette).  Honestly, they set aside findings more often than they disagree.  Also, now that they’re ruling on these remand cases, we’re going to see a few more set asides.  My point is that I think it detracts from the credibility of the Court that we’ll see a perfect game, hitting for the cycle, and a triple play before we see disagreement at the CCA level, especially when we’re seeing some fairly challenging issues being raised and, in my opinion, are drawing a number of 3-2 decisions at CAAF.  Just sayin…